Brian Chiwanza
The legal representative of a man accused of brutally killing two nurses exactly one year ago has told Magistrate Monyake Hlabanyane that his client is being unfairly kept in custody.
Advocate Tebalo Potsane made this submission before the Maseru Magistrate’s Court on Monday as he pleaded for Setsokotsane Majalle’s release on bail, which Mr Hlabanyane denied.
Majalle (21) of Ha-Lekhobanyane in Mazenod was arrested on 19 October 2014 for allegedly killing Mpho Khutšoane and ‘Mathebane Ramataboe, and dumping their bodies in a donga in Ha-Mosalla Thaba-Bosiu.
In addition to murder, Majalle and his co-accused who is still at large, are accused of stealing Khutšoane’s V/W Golf vehicle on 12 August 2014—the day of the alleged gruesome murders.
Majalle first made his court appearance on 21 October charged with two counts of murder and one of robbery.
On 3 November, Majalle, through his then lawyer Advocate Khosi Lesuthu, filed an application for his release on M500 bail, which the High Court threw out on 19 August 2015.
Majalle’s new lawyer, Advocate Potsane, on 31 August 2015 then approached the magistrate’s court for the release of the accused in terms of the Speedy Court Trials Act 2002.
According to Advocate Potsane, his client does not know how long he must languish in remand and what he is waiting for.
“The accused has stayed in jail since 21 October 2014 and in two months, he would have spent a full year behind bars. He does not get anything besides normal remands. The only record or point is that the matter is still pending investigations,” Advocate Potsane submitted before the court.
“The factual circumstances surrounding this case, at least in so far as the Act is concerned, warrant the release of the accused to await trial while at home.”
Advocate Potsane further argued it was Majalle’s right to be tried within a reasonable time.
“He has been languishing in jail for almost a year now and he does not know the progress of his case,” Advocate Potsane said.
“We submit that the accused has been in custody all along and the court cannot ignore this. In so far as the charge of murder is concerned, there is no progress at all.
“It is only now that we have become aware that the Crown will make an extradition application (for the co-accused who is believed to be in South Africa). The police have failed to nail the suspect and it boggles the mind how the extradition is going to be made. We submit that the accused is already serving punishment despite not being found guilty by any court.
“This is unfair. Public interest and the administration of justice are irrelevant in the application we are making.
“We submit that the circumstances warrant that the accused be released from custody.”
However, Crown counsel, Advocate Lehlanako Mofilikoane, said the court must take into consideration the interest of the public.
“I would like to persuade this court to take into consideration the interest of the public in this matter.
“We are dealing with a serious case of two counts of murder and robbery,” Advocate Mofilikoane said.
“Where one, among others, is charged with murder and armed robbery, he should be kept in custody until the case is dealt with in a court of law.
“He was with a colleague who is still at large with the vehicle robbed from the deceased. That being the case, it means the police have not completed their investigations.
“As matters stand, we are preparing extradition papers for the co-accused to be brought home. He has since been traced through Interpol.
“We also submit that the period the accused has spent in prison should start to be calculated after the judgment of the High Court.
“It is our prayer that the accused should not be released. It is not in the public interest that he be released. That is all.”
In ruling on the application, Magistrate Hlabanyane noted the murders and robbery were pre-meditated.
“Since the High Court has denied the accused bail, it is a compelling reason that he should not be released in terms of the Speedy Court Trials Act 2002.
“The point of departure is that the High Court is seized with revisionary and appellate powers over this court. The decisions of the High Court are binding over this court.
“Mr Potsane has argued that a distinction be made between bail and release. The court finds that no such distinction can be made as the exercise would be akin to splitting hairs.
“The final and binding decision of the accused’s release has been made and any new circumstances warranting variation can be referred to the very same court that made that decision. On this ground alone, the accused’s application stands to be dismissed.
“In the same judgment by the High Court which was availed to this court, submission had been made that the murders and armed robbery were pre-mediated and as such, the accused be kept in custody.
“The issue of the periods of delay as to when computation can or cannot be made does not carry much weight.
“In the final analysis as already shown, the accused’s application for release in terms of the Speedy Court Trials Act 2002 is hereby dismissed.”